When “Aliens: Colonial Marines” hit the stores in February, disgruntled gamers say the first-person shooter video game they bought was not the same one demonstrated by Sega and Gearbox Software in the years leading up to its release. And they’re suing the companies for false advertising to prove it.

Claiming the video game he – and everyone else in the United States – bought not only sucks but is also part of an unfair and unlawful “bait and switch” scheme, gamer Damion Perrine has filed suit in federal court in California.

Alien Disappointment

When Sega demoed the game in 2011, it reportedly looked like it was closely based on the well-known horror film “Aliens” (1986). Much anticipation built in the years the game was being developed, and its release was delayed.

When it finally hit the shelves, reviews were not good: some pointed to poor graphics that were “weird” and “clumsy,” others to a disappointing story line, and uninspiring incentives to continue playing. Critics were a rough crowd, but fans took it to the next level – the courthouse.

“Each of the ‘actual gameplay’ demonstrations purported to show customers exactly what they would be buying: a cutting edge video game with very specific features and qualities,” the complaint states.

“Unfortunately for their fans, Defendants never told anyone – consumers, industry critics, reviewers or reporters – that their ‘actual gameplay’ demonstration advertising campaign bore little resemblance to the retail product that would eventually be sold to a large community of unwitting purchasers.”

In fact, Sega and Gearbox allegedly refused to let any reviews of the real product be released until after the game hit the stores. And Gearbox’s CEO even tweeted that it was “understood” that a big gap existed between the demos and the actual game, which many consumers either pre-ordered or bought on the release date – thus being unable to read the negative reviews and perhaps decide not to buy it.

The plaintiffs are demanding that Sega and Gearbox not only refund buyers’ money but also give them any profits made from sales of the game, in addition to punitive damages. The complaint says those amounts exceed $5 million. Sega reportedly sold the game to a total of 1.31 million buyers in 2012.

Suit Is a Rarity

False advertising suits like Perrine’s, complaining that final versions of media releases don’t match pre-release previews, are very rare, says Eric Goldman, a law professor at Santa Clara University School of Law and the director of its High Tech Law Institute. The closest analogy is movie trailers, which he points out often contain scenes and dialogue that aren’t included in the final version of the film.

Professor Eric Goldman

“Although consumers often grumble about the discrepancies between the trailers and the movie, we rarely see lawsuits over movie trailers,” he says, pointing to only one, a reportedly frivolous suit in Michigan involving the movie “Drive.”

“I’m not aware of a similar lawsuit in the video game context,” Goldman says, adding that the plaintiffs face an uphill battle in the courtroom: “[T]he previews were explicitly labeled ‘work in progress,’ . . . many consumers didn’t directly see the previews but putatively relied on the media coverage and word of mouth they generated (which involved inherently subjective interpretations of the previews), and . . . the reviews immediately trashed Sega for its release.”

He says the last problem – the complaint’s limiting purchases to those made on or before the release date – “is an unusual limitation for a class action lawsuit” and notes that it may be difficult for buyers to prove when they purchased the game.

Consumers: FTW?

If Perrine survives a motion to dismiss and is able to certify – or prove the existence of – a class, Goldman predicts that the plaintiffs have a good shot at getting at least a settlement.

But how many consumers would take advantage of their “WIN” is a whole other question. “As a practical matter, resolving complaints like this through class action lawsuits is never fully satisfactory,” he says. “Most consumers will not tender a claim to a pool of money set aside for them, so it will be difficult or impossible to repay any overpayments consumers made.”

There are many reasons why consumers don’t follow through on their class action wins, Goldman explains, from inadequate notice of the suit through ads to payouts that aren’t valuable to them (such as coupons for discounts on their next purchase). “Even if the coupon’s dollar value is high, some consumers may be so angry that they never want to give another dime to Sega,” Goldman imagines, “so the coupon is worthless to them.”

I actually feel this is a dangerous precedent if the complainants wins because it sets a dangerous precedent anyone can sue a games company because they didn't like what they played or have ascore to settle.

First I played it in local coop with a friend, and after 15min he asked me to "turn it off, this game sucks".Then I played in local coop with another friend, and after 20min he asked me to "change the game disk".After that I played in local coop with my sister, and after 20min she said "it's enough".

heheFinally, I played the campaign alone, and so far the game is no bad, it's actually average. I've just finished mission 02. I did not test the online neither the multiplayer modes yet.Are there many people playing it online ?

Nearly 07 months after the game's release, do you still have the same opinion about it ?

Interesting article about the lawsuitI actually feel this is a dangerous precedent if the complainants wins because it sets a dangerous precedent anyone can sue a games company because they didn't like what they played or have ascore to settle.

I don't really agree in this scenario when Gearbox crafted a high quality scenario to demonstrate and market to the public despite knowing full & well said scenario wasn't representative of the end product. Games obviously cut material all the time but typically they come close to the quality found in early previews worst case, or even surpass those early demoes.

This was pure and blatant misrepresentation of the product, intentionally so. I'd say a false advertisement suit is warranted.

I didn't realise Barry was that big a fan of Aliens that he would want to buy a universally panned game.

LOL! What the hell are you talking about? I'm not a "big fan" of Aliens by a long stretch, and I assure you that I know it is a universally panned game. However, thats the draw. I want to play it for myself to see just how shitty it is.

I guess it just goes with the territory. If I want to run a SEGA fan site, I have to dip my toes in the waters even if I know Aliens: CM is a murky, disgusting water. I'd rather have a first hand opinion than continually say "Oh, I heard it's shit."

And like I said, I'll buy it eventually, but the price it going to have to be incredibly low. $10 or less is my limit.

LOL! What the hell are you talking about? I'm not a "big fan" of Aliens by a long stretch, and I assure you that I know it is a universally panned game. However, thats the draw. I want to play it for myself to see just how shitty it is.

I guess it just goes with the territory. If I want to run a SEGA fan site, I have to dip my toes in the waters even if I know Aliens: CM is a murky, disgusting water. I'd rather have a first hand opinion than continually say "Oh, I heard it's shit."

And like I said, I'll buy it eventually, but the price it going to have to be incredibly low. $10 or less is my limit.

Wasn't it just like $5 on Steam last week? Newegg had the PC version for free after rebate two months ago, I almost bit.